McCain v. Com.

• Decision Date: 18 April 2008
• Docket Number: Record No. 071189.
• Citation: 275 Va. 546,659 S.E.2d 512
• Court: Virginia Supreme Court
• Parties: Tyrone Junior McCAIN v. COMMONWEALTH of Virginia.

659 S.E.2d 512

275 Va. 546

Tyrone Junior McCAIN v. COMMONWEALTH of Virginia.

Record No. 071189.

Supreme Court of Virginia.

April 18, 2008.

Joseph H.M. Schenk, Jr., Public Defender, for appellant.

Karen Misbach, Asst. Atty. Gen. II (Robert F. McDonnell, Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and CARRICO, Senior Justice.

OPINION BY Justice S. BERNARD GOODWYN.

In this case we consider the circumstances under which a law enforcement officer may, within the confines of the Fourth Amendment of the United States Constitution ("the Fourth Amendment"), conduct a "pat-down" search for weapons on a passenger in a vehicle whose driver was stopped for a traffic violation.

Tyrone Junior McCain ("McCain") was charged in the Danville Circuit Court with possession of cocaine with the intent to distribute, possession of a firearm while possessing cocaine with the intent to distribute, possession of a firearm by a convicted felon, and carrying a concealed weapon. Prior to trial, McCain filed a motion to suppress, claiming that evidence was seized from him in violation of his constitutional rights. The trial court denied the motion to suppress, and convicted McCain on all charges.

McCain appealed to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed the convictions. McCain v. Commonwealth, Record No. 0110-06-3, 2007 WL 1319451 (May 8, 2007). McCain appeals.

In the early morning hours of August 9, 2005, Officer R.V. Worsham ("Worsham"), of the City of Danville Police Department, observed a vehicle ("the vehicle") parked in front of a house on Sublett's Alley in the City of Danville. The two occupants of the vehicle walked up to the house in front of which the vehicle was parked and, in less than a minute, returned to the vehicle. Worsham was familiar with the house because he was involved in a transaction "months" earlier in which an informant made a controlled purchase of cocaine there.

When the vehicle left, Worsham followed in his police vehicle. Worsham observed that the vehicle's rear license plate had a plastic border that covered the expiration date of the license plate. He intended to stop the vehicle for that reason, but "before [he] could get to it to stop it for that, it was [improperly] backing out into North Main Street." Worsham initiated a traffic stop. Worsham stopped the vehicle within sight of the house where Worsham had first seen the vehicle.

Worsham approached the vehicle and asked the driver, Kelly Hartman ("Hartman"), for her license. McCain was the front seat passenger. McCain, whom Worsham already knew, identified himself truthfully. Worsham obtained Hartman's information and went back to his car to check her driver's license and to call for "back-up" assistance.

Hartman's driver's license was reported suspended. Worsham went back to the vehicle and asked McCain if he had a license, so that he could drive the vehicle without it being towed. McCain told Worsham that his license also was suspended. Because both drivers' licenses were suspended, Worsham needed to conduct an inventory of the vehicle's contents and have it towed. When Officer E.K. Thompson ("Thompson") arrived on the scene, Worsham explained to him what had occurred and asked Thompson to watch the passenger side of the vehicle while Worsham got the driver out. Worsham asked the driver to exit the vehicle. She did so and consented to a search of her person and the vehicle.

Thompson went to the passenger side of the car and asked McCain to exit the car. Thompson asked McCain if he could perform a "frisk" or "pat-down" search on McCain. Up to that point, McCain had complied with every request made by the officers. McCain declined to give Thompson permission for the search. However, Thompson ordered McCain to place his hands on the vehicle and performed a pat-down search on him.

Thompson testified that McCain seemed nervous as Thompson began to pat him down and that Worsham had told him that he thought McCain was "edgy." When McCain removed his hands from the car, Thompson grabbed McCain by the arm and put him back on the car and said, "Look, don't be coming off the car like that cause I take that as a sign of aggression towards me." Thompson continued the pat-down and found keys in McCain's pocket. Later during the pat-down search, Thompson asked McCain if he had any weapons on his person, and McCain said that he had a gun, at which time Thompson removed a gun from McCain's waistband and placed him under arrest. During a search incident to the arrest, Worsham discovered cocaine in McCain's pocket.

The neighborhood where the traffic stop occurred had been patrolled by Worsham for almost five years and was "known for the drugs, known for shots fired, being called [in] all the time[,] . . . probably at least once a night shift." In fact, Thompson, who also regularly patrolled the area, testified that, "for officer safety," he conducts a pat-down search of every person he interacts with in that neighborhood, whether they want him to or not. Thompson testified, "If I'm getting out for a reason to talk to somebody I would definitely pat them down for my safety." The trial court found that McCain was seized for purposes of the pat-down search, but that his detention for that purpose was constitutional.

DISCUSSION

McCain claims that he was subjected to an unlawful seizure and search and that all evidence obtained as a result thereof should have been suppressed. The Commonwealth contends that, under the circumstances, the police officer's seizure and search of McCain was constitutional.

A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); see Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see also Ornelas v. United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In making such a determination, we give deference to the factual findings of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of his suppression motion was reversible error. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

Whether the Fourth Amendment has been violated is a question to be determined from all the circumstances. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); see Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Review of the existence of probable cause or reasonable suspicion involves application of an objective rather than a subjective standard. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Bass, 259 Va. at 475, 525 S.E.2d at 923-24; Ewell v. Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997); Zimmerman v. Commonwealth, 234 Va. 609, 611-12, 363 S.E.2d 708, 709 (1988); Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982).

Under well-settled principles of law, police officers may stop a person for the purpose of investigating possible criminal behavior even though no probable cause exists for an arrest. Terry, 392 U.S. at 22, 88 S.Ct. 1868. A stop is permissible so long as the officer has reasonable, articulable suspicion that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). To establish reasonable suspicion, an officer must be able to articulate more than an unparticularized suspicion or "hunch" that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The character of the location and the time at which a person is observed are relevant factors, but they do not supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped. See Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Wardlow, 528 U.S. at 124, 120 S.Ct. 673.

Worsham observed McCain go to a house on Sublett's Alley and return to a parked car in less than a minute. Worsham did not observe any suspected drug activity or transaction when McCain went to the house, but he was aware of a controlled purchase of drugs at the house "months" before McCain approached the house, which is in a "high drug" area.

McCain's brief presence at a house the officer associated with drug activity months prior does not support a reasonable inference of criminal activity. The record does not contain any evidence concerning the purpose of McCain's visit or any suspicious behavior during the visit. A person's Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a "high crime" area. Despite the neighborhood, the activity Worsham observed on Sublett's Alley was not sufficient to stop McCain because of a reasonable suspicion of criminal activity. However, Worsham did have a legitimate basis for stopping the vehicle McCain was traveling in.

An officer may effect a traffic stop when he has reasonable suspicion to believe a traffic or equipment violation has occurred. Bass, 259 Va. at 475, 525 S.E.2d at 923-24. Here, Worsham had probable cause to stop the vehicle in which McCain was riding when Worsham observed both an equipment violation and a traffic infraction. Thus, although there was no reasonable...